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Exceptions to the Hearsay Rule

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Exceptions to the Hearsay Rule Exceptions to the Hearsay Rule FRE 803 (1) - (3) Beginning with Present Sense Exceptions and Excited Utterances FRE 803(1) and 803(2) FRE 803(1): Present Sense Impression Is this a statement describing or explaining an event? Is it made a while the declarant was perceiving the event or immediately thereafter? Present Sense Impression •Description of event Made while perceiving event or immediately thereafter Present Sense Impression: Rationales Accuracy: Declarant wasn’t relying on memory Sincerity: It’s hard to lie quickly Utility: Declarant may be unavailable OR the contemporaneous statement may have particular meaning Excited Utterance Declarant spoke while excited by an event Statement related to the event FRE 803(2): Excited Utterances Is it a statement that relates to an startling event or condition? Was the statement made while the declarant was under the stress of excitement caused by the event or condition? Excited Utterance: Rationales Accuracy: Declarant wasn’t relying on memory Sincerity: It’s hard to lie when excited Utility: Declarant may be unavailable OR the excited utterance may have particular meaning Present Sense Excited Impression Utterance As impression occurs While excited by or immediately event thereafter Description, no Relates to event; may analysis include analysis Testimony Offered: Admissible? Adam: Violet said, “Got to go, Sam just walked in” Adam: “Right after that, I heard a loud noise like a gunshot.” It was too dangerous to take that boat out today! Nurse: Miriam said, “It was too dangerous to take that boat out today!” Is this admissible as excited utterance? Is this admissible as present sense impression? Is it admissible because it is not hearsay? Is it inadmissible? Missing Victim Robbery victim examines photo array and identifies Jones as robber Victim dies before trial Can officer testify that victim identified Jones? “This device holds a live bomb, and it’s set to go off in 20 minutes. Give me all of your cash quickly so I can get out of here. That way we’ll all survive.” The Hearsay “Four” 1. Is the witness referring to a statement that occurred outside the courtroom? 2. Are you sure it’s a “statement”? 3. Is a party offering the statement to prove the truth of the matter asserted? 4. Does an exception apply? State of Mind The State of Mind Exception FRE 803(3) Statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. But not including a statement offered to prove the fact remembered or believed . He’s crossing the 40- yard line I’m hungry States of Mind I’m bored I’m hungry I’m angry I’m planning to cut class State of Mind Not Covered I’m hungry Because I had only salad for lunch I’m angry Because Tim stole $20 from me I’m bored Because hearsay is useless information Right After the Winning Number is Announced I just won the lottery! Two Months After Winning I’m so excited. I won the lottery. I’m rich! I’m going to take a trip around the world. I’m scared. The fires have been raging for weeks. Possible Testimony: Admissible? First sentence: “I’m scared.” Second sentence: “The fires have been raging for weeks.” I believe the danger to our house is past. Jane said “I believe the danger to our house is now past.” Admissible to show that Jane believed the danger was past. NOT admissible to show that the danger was, in fact, past Dirk said “I remember that the fire reached our property on Tuesday” Admissible to show what Dirk believed at the time he spoke NOT admissible to show when the fire reached the property A woman called and cried: “Help! My house is on fire and I’m feeling dizzy!” Last week, I accepted a job with the U.S. Attorney’s office Possible Testimony: Admissible? Can Tess testify about Meredith’s statement to show she had job with U.S. Attorney? Can Tess testify about Meredith’s statement to show she was in a positive mood? Did Ginger’s head hurt on Monday? On Tuesday, My head Ginger says: started hurting yesterday Possible Testimony Can we admit Ginger’s Tuesday statement to show her head hurt Monday? Did Ginger’s head hurt on Monday? My head hurts! On Tuesday, Ginger says: Possible Testimony: Admissible? Can we admit Ginger’s Tuesday statement to help prove her head hurt Monday? Forward Looking Statements I plan to pay off my loans by selling this cocaine. Marcy Is Arrested with Cocaine in Her Pockets State-of-mind exception admits her earlier statement Use statement to show Marcy’s intent Possession with intent to sell Use statement to prove Marcy’s conduct The cocaine belonged to Marcy MBE Sample Question Polly sues Don for an assault that occurred May 8 in Arizona Don claims he was in Utah on May 8 Don offers a letter he wrote to his sister on Feb 12: “See you in Utah on May 8.” Can we admit Don’s letter to support that he was in Utah? Plans that include others James says to his sister: “I’m going to meet Billy Herd.” Two hours later, police find James dead. Can James’s sister testify that James intended to meet Billy? If so, is this circumstantial evidence that James did meet Billy? Dear sister and all, . I expect to leave Wichita on or about March the fifth, with a certain Mr. Hillmon, a sheeptrader, for Colorado or parts unknown to me. I am truly your brother, Fred. Adolph Walters The Hillmon Rule Statements of an out of court declarant’s intent can be admitted to show state of mind and that the declarant acted in accordance with his or her state of mind (intent). Hillmon Today Rule 803(3) may overrule But many courts allow parties to introduce state of mind referring to future actions of another Irresistible appeal of victim’s parting words Angelo Problems "I am going to meet my drug dealer Angelo to stock up on my supply of illegal drugs.” “Larry told me that Angelo was going to be in the Costco’s North parking lot later in the day.” " I am going to meet Angelo in the parking lot of McDonald's tonight.” " On the morning that Angelo was arrested, Angelo told me that Larry was going to be in the Costco’s North parking lot later in the day.” More Angelo Problems “I am going to Angelo's apartment tonight.” "I will not go out with anyone but Angelo tonight. ” Independent evidence that Larry went out. Review: The State of Mind Exception FRE 803(3) Statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (including intent to show that the declarant did what he intended to do) But not including a statement offered to prove the fact remembered or believed . .
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